Children

Advice for Parents

The way in which parents deal with their separation makes a difference to how their children cope with the situation. Decide together, if possible what, when and how to tell the children about your separation/divorce. If a joint approach is not possible avoid blaming the other parent and reassure the children of your love for them.

You will continue to be a parent even if you are no longer living with your children on a full-time basis. Reassuring your children that they are not responsible for the breakup and listening to their worries/concerns/fears about the separation is very important. Keeping your children informed about the major decisions being made about and for them will lessen the negative impact on them.

It is important that the children, regardless of what age they are, do not get forgotten in the adult dispute. While your relationship as a couple has ended, your relationship and role as a parent has not. See the Survival Plan for Parents leaflet.

When parents separate, whether they are married or not, arrangements will need to be made to regulate the arrangements for the children. Children need to know the proposed practical arrangements e.g. where everyone will live, when they will see the other parent, holiday arrangements. Consider drawing up a parenting plan and consider, if appropriate, getting the children’s input. Ideally, both parents will work together to prepare a ‘parenting plan’ which will help them deal with the day-to-day care and needs of the child or children involved.

Living apart from your spouse or partner should not prevent you from cooperating on what is best for your children. It is important that you work together to help the children adapt to this new family situation. As each family unit is unique with different dynamics, different needs, there is no set formula for how much time the children spend in each house and with each parent.

You know your children best and your need to work towards an arrangement that will suit them best and that works for all of you. Before considering what Orders to make the court must have regard for the welfare of the child as the paramount consideration. This welfare test includes the religious, moral, intellectual, physical and social welfare of the child. The court shall also, as it thinks appropriate having regard to the age and level of understanding of the child, take his/her wishes on the matter into account.

Meaningful time spent with each parent is best for children. Agreement on the residence (or custody) and contact (or access) is best for everyone. Custody is the day-to-day care and control of the children. This is called ‘residence’ and this means exactly what it says – where the children will reside or live. Contact or access is the term used to describe time spent with the parent with whom the child does not live.

If you cannot agree the custody/access arrangements your solicitor may be able to negotiate with your ex or their solicitor. You will be advised about counselling/mediation/collaboration. If agreement / negotiation / mediation / collaboration do not work, you can apply to the courts. A court application for custody/access will be held in a local district court. The judge will decide what is in the best interest of the children. The Order of the judge may be appealed. There are penalties for non compliance with the court order.

What is a Parenting Plan?

A parenting plan is an agreement between both mother and father in relation to how they will raise their children even though they are living apart. This can include agreement on how to manage challenging behaviour from children and how to discipline them, agreement on the recreational and extra-curricular activities the children may pursue, agreement on managing medical issues (this is especially relevant if any of the children has special health needs), agreement on day-to-day contact and on additional arrangements for holidays and special events such as birthdays, communion, confirmation etc.

Couples often engage the assistance of Mediators, Family Counsellors and/or Child Psychologists to help in reaching agreement on the Parenting Plan.

If an agreement cannot be reached amicably, either parent can make an application to court for custody. Applications are most commonly brought in the District Court Area where the children reside. Court applications should always be the last resort and even if legal assistance is needed it is always advisable to reach a settlement than proceed to court. The law makes a distinction between the terms ‘custody’ and ‘access’ and ‘guardianship’.

What is custody/residence?

Custody is the day-to-day care of the child. Married parents are automatically joint custodians of the children born to them. In the case of an unmarried or cohabiting couple, the mother is sole custodian unless it is otherwise ordered by the court.

Children live primarily with the parent who has custody. Where an order for joint custody is made both parents are involved in the care of the children, including over-night care, though not always on a 50/50 or equal basis. Joint custody involves a child residing with each parent for a set period of time. Custody, sole or joint, implies a duty to care for the child.

What is access/contact?

Access is the right of visitation with the child and is viewed by the courts as much a right of the child to see its parents as a right of the parents. The access or contact routine is determined on the basis of what is in the best interests of the child.

Contact between a child and its parents should be encouraged and maintained whenever and wherever possible. Applications for access are also usually made to the local District Court and are made by any guardian or by any natural father who may not be a joint guardian. Orders may be varied by the court if the circumstances of the family change.

Things to avoid during access:

spoiling children and over-compensating for time spent away from them,

upsetting the routine established by the primary carer including bed-times,

forcing children to take sides between parents,

speaking negatively about the other parent,

pumping the children for information about the other parent,

not turning up for agreed access or changing the arrangements at the last minute.

During your time with the children:

be consistent in your parenting and disciplining of the children (refer to your parenting plan),

allow the children to show their upset at the separation,

allow the children to speak openly and lovingly about the other parent,

reassure your children that they are loved by both of you despite the separation,

respect the views of older children.

Guardianship

A guardian of a child is the person who cares for the child and who makes all the major decisions in their life e.g where they live, schooling, religion, medical procedures. The parents, if married, are joint guardians of a child.

If the parents are not married to each other and if there has been no signed agreement or court order, the mother is the sole guardian of that child. An unmarried father can apply to the district (local) court to be appointed guardian. If the guardians cannot agree about major decisions about the children, they can apply to the district (local) district court and ask the judge to make the decision.

For more information on the implications for guardianship, custody and access to children in Ireland following separation and divorce, see the Citizens Information site.

Passports

If a guardian of a child wishes to apply for a passport for that child and the other parent/guardian fails or refuses to consent, the applying guardian may make an application to the district (local) court to dispense with the consent of the other parent/guardian.

Moving away

If a guardian of a child wishes to move to live in another country with the children and the other parent/guardian fails or refuses to consent, the applying guardian may make an application to the district (local) court to ask the judge to make an order permitting them to “move away”.

Grandparents' rights

Grandparents can apply to court to have contact/access to their grandchildren. There is a two-stage process. They must first apply to court to get permission to bring an access application and if this is granted they can then bring the application to have a judge decide on what access they should have.